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n80. See, e.g., Friedenthal et al., supra note 34, 14.3, at 653 ("The interest of the judicial system in preventing relitigation of the same dispute recognizes that judicial resources are finite and the number of cases that can be heard by the courts is limited. Every dispute that is reheard means that another will be delayed. As modern court dockets are filled to overflowing, this concern is of critical importance. Res judicata thus conserves scarce judicial resources and promotes efficiency in the interest of the public at large.").

Concern over excessive litigation in the federal courts is old hat ... [and] also typically exaggeration... . The truth about the "litigation explosion' is that it is a weapon of perception, not substance. If the public can be persuaded that there is a litigation crisis, it may support efforts to cut back on litigation access.

In the background of these decisions are limited resources. Judicial vacancies, or resource constraints more generally, may impact the number of cases that can be prosecuted and tried. When there are fewer judges available, prosecutors may incur costs from prosecuting a case regardless of whether the defendant ultimately goes to trial. For instance, the Speedy Trial Act of 1974 establishes time limits for completing various stages of a federal criminal prosecution. In general, the Act requires the government to file an indictment within 30 days of a defendant’s arrest. If a defendant enters a plea of not guilty, he or she must be tried within 70 days of the indictment, which can be extended if a judge grants a continuance.4

How binding is the constraint imposed by the Speedy Trial Act during judicial vacancies? While data on the number of speedy trial violations over time is lacking, anecdotal evidence suggests that judges are unwilling to perpetually extend the time required to go to trial, noting that unless vacancies are filled, they would be required to dismiss some criminal cases.5 In 2010, the American Bar Association noted that the strain judicial vacancies imposed on caseloads forced federal judges to allocate their limited time to criminal cases because of “speedy trial rules that require them to put criminal cases first,” resulting in civil proceedings being put off.6 In fact, judicial vacancies have posed such severe speedy trial issues that in January 2011, the federal district court in Arizona enacted a year-long, emergency suspension of the mandated speedy trial time limitations because of the court’s shortage in judges.

If we take my argument in Part II as a given--that is, if we assume for present purposes that claims provide valuable but imperfect information about the invention--then what should a court do with them as a policy matter? A common intuition holds that a court's job is to reach the most accurate outcome possible. That is, a court should try to discern the real invention and the optimal patent scope. Of course, even in an individual case, a court is constrained in its pursuit of accuracy by finite adjudication resources. Courts cannot realistically hold multiyear trials, nor can they summon thousands of experts. Thus, our initial focus on accuracy must be qualified: courts should attempt to achieve the most accurate outcome given their available resources. Notwithstanding such resource constraints, however, the intuition is that no artificial limits should be imposed. Within this paradigm, a court should allocate its budget to maximize its ability to pursue the truth: the court should collect as much evidence as feasible and then consider all that evidence on an equal basis. By equal weight, I do not mean that a court would say the following: "Witness A, the upstanding citizen, says the defendant stabbed the victim, while Witness B, the known habitual liar, says the defendant did not, and because all evidence is given equal weight, the result is a toss-up." Rather, I mean that a court will consider all the evidence in light of its credibility and in the totality of the circumstances, to get to the result that is most likely to reflect the underlying factual truth on the question at issue. The contradistinction is to a regime where courts are required by a preset rule to favor or disfavor certain types of evidence. For example, a court that excludes a bloody knife that the police obtained through an illegal search thereby gives this evidence zero weight. The court does so not because it thinks that the knife is unreliable evidence or that the underlying factual truth is that the defendant is innocent. It does so because the preset exclusionary rule mandates that courts accord zero weight to evidence obtained through illegal searches. By definition, therefore, a court that is seeking to maximize accuracy in an individual case would consider equally all the available evidence. But this formulation is not just a rhetorical trick. The substantive point is that, if the goal is simply to maximize accuracy, the law should rarely have categorical rules that exclude or disfavor broad swaths of evidence. It should instead [*547] use a totality-of-the-circumstances inquiry that considers both the claim text and all reasonably collectible extrinsic evidence. And such totality-of-the-circumstances inquiries are what Corbin and his fellow travelers in patent law generally propose.

First, national judges are by and large successfully adapting their traditional role of administration of justice to the new challenges posed by climate change litigation. Presented with a number of novel and urgent legal questions, they have increasingly held their own governments accountable under national constitutional principles, implementing legislation, or common-law doctrines. Since 2013, as one court noted, courts have increasingly "recognized the role of the third branch of government in protecting the earth's resources that it holds in trust."' 1 6 1 Thus, though climate litigation will continue facing different substantive and procedural hurdles in different jurisdictions—from standing to the political question doctrine—courts have demonstrated that, generally, they are rising to the task and using the tools at their disposal for administration of justice in this emerging area.

This trend can be greatly enabled by making the emerging cross-jurisdictional jurisprudence in this area more readily accessible to judges around the world. Likewise, climate literacy training aimed at building judicial awareness of climate science, climate impacts, and climate resilience imperatives can help equip judges to perform their traditional role of administering justice in the context of this global phenomenon.

First, a California environmental court to adjudicate climate change is politically feasible. There is public demand for enhanced environmental accountability as Californians generally support state climate action.181 Fiftyfour percent of Californians say it is important that the state is a world leader in fighting climate change,182 most Californians support state efforts to address global warming and would support such action even if costly,183 and California has led the nation in progressive climate laws and policies.184 State agencies and the legislature are committed to fighting climate change in innovative ways.185

Second, California has an extensive workforce of environmentally trained judges and lawyers to populate the new court, including the state court judges trained to adjudicate CEQA cases. Third, traditional courts have provided no assurance that they can adequately decide climate suits on the merits. Given the rapid pace of climate change, a new venue should be designed to handle related litigation. California will continue to be hit hard by the devastating effects of climate change. Litigation like San Mateo will proliferate in California, so the state needs a dedicated court to receive this influx and prevent a backlog in the system.

Then the fourth factor can occur. In response to the lack of environmental enforcement and protection, civil society in the form of environmental NGOs, advocacy lawyers, as well as public entities begin bringing their complaints to the available general courts. At this point, the all-important fifth factor can occur - the traditional courts disappoint expectations, failing to deliver environmental justice. They often do not provide an ideal adjudication, one that is, in the succinct words of Australian court procedural law, "just, quick, and cheap."6 Barriers to existing court effectiveness in resolving environmental conflicts are many and various - the most significant being long delays, huge case backlogs, poor case management, decision-makers lacking in environmental expertise, narrow definitions of plaintiff standing, the high cost and economic risks of litigation, lack of consistent decisions, intimidation, and corruption.7

Thus, even as the court ‘reluctantly’ concludes that the fact that ‘the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts [the type of US court involved in this case], no matter how well-intentioned, the ability to step into their shoes’,60 the opinion underscores the courts’ deep intuition that political inaction is untenable. Moreover, in a powerful dissent, Judge Staton decried political inaction and declared that the plaintiffs’ suit was necessary ‘to enforce the most basic structural principle embedded in our system of ordered liberty: that the Constitution does not condone the Nation’s willful destruction’.

61 Analogizing the court’s delay in stepping in to recognize fundamental rights in the climate context to the failures of the court to step in earlier than it did with respect to desegregation, Judge Staton states that:

As shown below, climate litigation in national courts has gone beyond the traditional confines of environmental litigation-such as air and water pollution, or environmental impact assessments (EJAs)-to include a variety of disputes addressing climate change issues both directly and indirectly: lawsuits over constitutional rights to life, the rights of future generations, climate treaty commitments, and climate-resilient zoning regulations. These disputes can broadly be categorized as (a) litigation involving climate mitigation measures-efforts designed to reduce or prevent emissions of greenhouse gases (GHGs), and (b) litigation involving climate adaptation measures-efforts designed to build resilience and reduce the negative impacts of climate change on communities and ecosystems.

The Maturing of Climate Litigation: From Regulatory Prod to Indispensable Buttress of Rights

The body of climate litigation is maturing and becoming increasingly imbedded in, and essential to, efforts to combat climate change. The current wave of climate litigation includes a wide range of cases and claims, but two dominant themes emerge: litigants are refining their approach to claims based on legal principles (eg, common-law claims in the United States) and expanding the scope of claims outward to make greater use of private-law claims; and litigants are seeking to situate state obligations to address climate change as a matter of fundamental constitutional and human rights.

Moreover, pursuant to the same endangerment finding, the EPA also determined that it was obligated to regulate greenhouse gas emissions from stationary sources, including power plants. As a result, in 2015, the EPA released the Clean Power Plan, which was designed to cut carbon emissions from power plants by 32 per cent below 2005 levels by 2030. Together, the Clean Power Plan and the automobile fuel standards provided the cornerstones for national efforts to begin ratcheting down emissions to achieve domestic and international emission-reduction targets. In short, the Court’s decision in Massachusetts v EPA prompted the development of the foundation of US climate law. Of course, as this was written, the Trump Administration was attempting to demolish that foundation. The power and the accumulated effect of the Court’s decision in Massachusetts, however, limit the speed and the extent to which the Trump Administration is able to dictate an executive rewriting of national climate law. Hence, in the United States, litigation prompted the construction of the core of federal climate law and provides a backstop to aggressive efforts to erase existing law while also deepening legal and extra-legal momentum on climate change across the waxes and wanes in political leadership.17

The first wave of climate litigation was driven by actions brought in the United States, as well as in Australia, in response to political inaction. During this first wave, domestic claimants in the United States sought to use existing statutes and tort law claims to compel the federal government to limit greenhouse gas emissions pursuant to existing environmental laws and to force large corporate actors to reduce their emissions or provide compensation for the harms caused by climate change. In one of the most seminal cases to date in US environmental law, the Supreme Court ruled that the Environmental Protection Agency (EPA) possessed regulatory authority over greenhouse gases under the Clean Air Act (CAA), and that the Agency’s decision on whether to regulate these pollutants must be statutorily grounded and based on scientific (not political) considerations.14 Following the Court’s ruling, the EPA issued an endangerment finding under the CAA that triggered obligations to begin regulating greenhouse gas emissions from new automobiles.15 Subsequently, the EPA and the US Department of Transportation established the first-ever nationwide greenhouse gas emission standards for light-duty vehicles and the nation’s most progressive fuel-efficiency improvements. As a result of these and subsequently developed rules, automakers were required to nearly double the average fuel economy of new cars and trucks by 2025. 16

While uncertainty extends until the expiration of the patent, it begins far before the patent is granted. The term of a patent grant is calculated from the date of filing, but that right is not enforceable until the patent is issued. Delayed examination "makes it difficult for companies to know what rights will be granted to competitors based on their claims in patent applications." 2 58 Therefore, timely examination is an important first step in managing the level of uncertainty that flows from the already disruptive influence that quasi-monopolistic patent rights impose on the market.

During prosecution, the various strengths and weaknesses of the applicant's claimed invention are affirmed by an (un)biased third party. There remains a strong legal presumption that an issued patent is valid. While there is roughly a fifty percent chance that a litigated patent will be invalidated post-grant, 6 examination plays an important role in drawing boundary lines.6' Issuance of the patent grant is a signal as to how the government and the patent holder understand the contours of that right to exclude. Or at least, it is a recognition of the patent holder's highly probabilistic right to exclude.212 The longer an application stagnates without USPTO review, the less certainty the applicant, potential investors, and competitors have in the validity and inevitable enforceability of the patent. Unfortunately, quantifying the actual societal harm caused by this increased level of uncertainty is impossible. It merely adds another variable to the stochastic nature of patent rights.

These heavy workloads can take a toll on judges; in four districts, interviewees explicitly raised the concern of burn-out due to the burdens of compensating for long-term vacancies (E.D. Cal., S.D. Fla., D. Nev., E.D. Tex.).59 Chief Judge Davis in the Eastern District of Texas, for example, described the “long-term tolling effect on the judges” from his district’s two vacancies, citing an impact on “morale.”60 He added, “I sense a weariness and a tiredness on behalf of our district judges, especially ones that have to travel long distances [because of vacancies].”61 Judge Davis speculated that this long-term toll was encouraging judges in his district to retire, noting that the number of senior judges in his district has declined as more judges chose to leave the bench altogether when they reached retirement age.62 Chief Judge Federico Moreno in the Southern District of Florida likewise highlighted the toll that vacancies in his district placed on judges, despite observing that he did not think the vacancies were impacting the administration of justice.63 “It’s like an emergency room in a hospital,” he observed. “The judges are used to it and people come in and out and get good treatment. But the question is, can you sustain it? Eventually you burn out.”64

In two districts, interviewees also highlighted the burdens on senior judges who had retired from active service while continuing to carry full or close-to-full caseloads,65 arguing that it “wears [them] down.”66 The Clerk of Court in the Western District of Wisconsin commended the district’s senior judge as “working as hard or harder than before she retired.”67

The most problematic part of the SHOP SAFE Act is its requirement that online marketplaces implement a program to “expeditiously” take down counterfeit listings the platform is reasonably aware of.152 The Act adopts a very broad view—similar to the “reason to know” standard that the Tiffany court rejected153—of when an online marketplace should be reasonably aware of the use of a counterfeit mark.154 If an online marketplace has a program but perhaps does not take down counterfeit listings “expeditiously,” it may be exposed to liability despite good faith efforts. This could be a reasonable outcome if the marketplace could otherwise avail itself of a safe haven through reasonable efforts, but the requirement for such a program is actually an eligibility requirement for the safe haven.

The Act purports to create a safe haven, but the numerous exceptions to the rules and reliance on reasonableness muddy the waters and invite litigation.155 One such exception is found in the Act’s definition of “repeated use of a counterfeit mark”: “[u]se of a counterfeit mark by a third-party seller in 3 separate listings within 1 year shall be considered repeated use, except when reasonable mitigating circumstances exist.”156 What qualifies as a reasonable mitigating circumstance is anyone’s guess.

Moreover, if parts were purchased on e-commerce platforms, the online marketplace or service provider is typically immune from suit under the rule created in Tiffany (NJ) Inc. v. eBay Inc.335 There, the court held that for contributory trademark infringement liability to exist, a service provider must have more than a general knowledge or reason to know that its service is being used to sell counterfeit goods. "Some contemporary knowledge of which particular listings are infringing or will infringe in the future is necessary."336 The requirement of actual knowledge has created a safe harbor for e-commerce platforms.

What is “Counterfeiting”? The bill defines “counterfeit mark” as “a counterfeit of a mark” (I can’t make this up). But there’s actually a lot of confusion about what constitutes counterfeiting. See, e.g., my post about the trademark enforcements involving the “EMOJI” word mark, where they take the position that a marketplace item using the term “emoji” in the product name or description “counterfeits” their mark (seriously, look at the example from their exhibit and tell them that’s not bogus). A similar issue arises with print-on-demand services, where trademark owners take the position that any variation of their mark being manufactured onto a good constitutes counterfeiting, even if it’s parodic or an obvious joke. Thus, the bill’s grammar restricting the “use of counterfeit marks” potentially covers a much wider range of activity than classic piratical counterfeiting. Trademark owners will weaponize that ambiguity.

The SHOP Safe Act would create significant and unreasonable impediments for small and "micro" businesses that rely on platforms to sell and resell products to other businesses and consumers. The bill would make it difficult for such businesses to use trademarks to describe the products they are offering, by requiring platforms to use reasonable technological tools to scan nearly every third-party listing or advertisement that includes a trademark, and to rely on such automated processes to make determinations that brand-trained experts are expected to make in every other legal context, including in alleging copyright infringement under the DMCA. Technology is not perfect, and by threatening platforms with legal liability if they fail to take action to remove potential "false positives," the bill would incentivize overenforcement at a potentially massive scale. The bill would also require companies to impose punitive consequences on sellers who have used trademarks that are presumed to be counterfeit—including permanently banning them from the platform, but the draft language is remarkably devoid of any semblance of due process to allow sellers to confront brand owners and assert that their use of a trademark was valid.

//DH

Trademarks are pervasive across the globe. There are over 2.6 million active trademarks in the U.S. alone.15 It would be impossible for a new e-commerce platform to learn, monitor, and identify alleged infringement of that many marks in the millions of products that are (or could be) posted on these sites. Volume is not the only problem—it is complex to identify specific instances of trademark infringement. Trademark owners are much better suited to know what might confuse their consumers and know what products they have authorized.16 Without trademark owners identifying infringement in the first instance, platforms will both over- and under-police, unintentionally blocking legitimate content and letting some infringement slip through the cracks.17

To study the causal effects of varying trademark protection we exploit the Federal Trademark Dilution Act (FTDA) of 1996, which granted additional legal protection to “famous" trademarks until its key provision was nullified in 2003 by a U.S. Supreme Court decision. We find that the FTDA raised treated firms’ operating return on assets by an average of 1.7 percentage points (pp), equal to 12% of their average pretreatment profits. The FTDA was followed by a sharp increase in trademark lawsuits under the new provision and by reduced entry and turnover in affected goods and service classes, consistent with our hypothesis that the FTDA raised the expected cost of entry into affected product markets. Treatment effects were strongest in firms that faced moderate entry threat ex ante, consistent with strategic entry deterrence as a mechanism.